BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
DECISION
Applications nos.
50541/08, 50571/08 and 50573/08
Muktar Said IBRAHIM against the
United Kingdom
Ramzi MOHAMMED against the United Kingdom
and
Yassin OMAR against the United Kingdom
The
European Court of Human Rights (Fourth Section), sitting on 22 May
2012 as a Chamber composed of:
Lech Garlicki, President,
Nicolas
Bratza,
George Nicolaou,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
Vincent
A. De Gaetano, judges,
and Lawrence Early,
Section Registrar,
Having
regard to the above applications lodged on 22 October 2008,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants are Somali nationals. Mr Ibrahim is represented before the
Court by Irvine Thanvi Natas, a firm of solicitors based in London.
Mr Mohammed is unrepresented. Mr Omar is represented before the
Court by Arani Solicitors, a firm of solicitors based in Southall.
All three applicants are currently in detention.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicants, may be summarised
as follows.
1. The background facts
- At
around midday on 21 July 2005, in a manner almost identical to the
events of 7 July 2005 when four suicide bombers killed fifty-two
people in London, four men attempted to detonate explosive devices on
three underground trains and a bus. In each case the detonator
initiated but the main charge failed to explode. The men, whose
images were captured by closed-circuit television cameras,
subsequently fled. The applicants and Mr Hussain Osman were
later identified as the four suspects involved.
- A
fifth device was abandoned, undetonated, in a bin. It was discovered
on 23 July 2005. Mr Manfo Asiedu was later identified as the fifth
suspect.
- Subsequent
testing revealed that the failure of the devices to explode was most
likely the result of the inadequate concentration of liquid hydrogen
peroxide. The liquid hydrogen peroxide in the devices was found to
have a concentration of around 58 per cent. A concentration of around
70 per cent would have been needed for them to explode.
a. The arrest and detention of Mr Omar
- Mr
Omar was arrested on 27 July 2005 at 5.15 a.m. in Birmingham. He was
formally arrested and cautioned using the new-style caution, namely
that he did not have to answer questions but that anything he did say
might be given in evidence, and that adverse inferences might be
drawn from his silence if he failed to mention matters later relied
on by him at trial.
- He
arrived at Paddington Green Police Station, London, at 7.20 a.m. At
7.50 a.m. he requested the attendance of a solicitor. He was told
that he was entitled to consult a solicitor but that this right could
be delayed for up to forty-eight hours if authorised by an officer of
the rank of superintendent or above. At 7.55 a.m. a superintendent
ordered that Mr Omar be held incommunicado (see paragraphs 78-79,
81-84 and 86 below).
- Shortly
afterwards, a different superintendent directed that a safety
interview be conducted with Mr Omar. A “safety interview”
is an interview conducted urgently for the purpose of protecting life
and preventing serious damage to property. The detainee is questioned
in order to secure information that may help avert harm to the
public, by preventing a further terrorist attack, for example.
Notwithstanding a request by the detainee for legal advice and
representation, the interview occurs in the absence of a lawyer and
before the detainee has had the opportunity to consult a solicitor
(see paragraphs 78, 80-83 and 85-86 below).
- At
9 a.m. a brief safety interview took place. It lasted three minutes
and focused on whether there was anything unsafe in a bag which Mr
Omar had discarded when he was arrested.
- At
9.15 a.m. the custody officer contacted the duty solicitor on behalf
of Mr Omar. He advised the duty solicitor that he would be contacted
when the booking-in procedure had been completed. At 10.06 a.m. and
10.14 a.m. Mr Omar again requested access to a solicitor. He was told
that this would be arranged as soon as the booking-in process had
been completed.
- At
10.24 a.m. the custody officer was told that a further safety
interview had been authorised. It was recorded in writing that Mr
Omar had not been given access to legal advice on the grounds that
delaying the interview would involve an immediate risk of harm to
persons or damage to property and that legal advice would lead to the
alerting of other people suspected of having committed offences but
not yet arrested, which would in turn make it more difficult to
prevent an act of terrorism or to secure the arrest, prosecution or
conviction of persons in connection with terrorism offences. The
reason for these beliefs, which was also recorded, was that Mr Omar
was suspected of participating in the attacks of 21 July together
with at least three as yet unidentified accomplices.
- Safety
interview A commenced at 10.25 a.m. and concluded at 11.11 a.m.
At the beginning of the interview, Mr Omar was given the old-style
caution, namely that he did not need to say anything but that
anything he did say might be given in evidence. Safety interview B
commenced at 11.26 a.m. and concluded at 12.11 a.m. Again, Mr
Omar was given the old-style caution at the start of the interview.
At 12.19 p.m. the duty solicitor was contacted and told that safety
interviews were taking place. At 12.31 p.m. safety interview C
commenced. This time, Mr Omar was given the new-style caution. It
finished at 1.17 p.m. At 1.35 p.m. safety interview D commenced,
following the administration of the old-style caution. It was
completed at 2.20 p.m. During the safety interviews, Mr Omar either
claimed that he did not recognise the other suspects from the photos
in the media or he gave an incorrect account of how he knew some of
them. He deliberately misdescribed their involvement in the
events of 21 July.
- Meanwhile,
at 2.15 p.m., the custody officer contacted the duty solicitor. The
duty solicitor indicated that he would arrive at the police station
at 3.30 p.m. At 3.40 p.m. the duty solicitor arrived at the custody
suite and was permitted to read the custody record.
- At
4.08 p.m. Mr Omar was placed in a room for consultation with the duty
solicitor. That consultation was interrupted at 4.15 p.m. for a
further safety interview, which began at 4.19 p.m. and concluded at
4.21 p.m. and was conducted in the presence of the solicitor.
b. The arrest and detention of Mr Ibrahim
- Mr
Ibrahim was arrested on 29 July 2005 at 1.45 p.m. in a flat in
west London on suspicion of involvement in acts of terrorism on 7 and
21 July 2005. He was cautioned and was then asked whether there
was any material on the premises which might cause danger and replied
that there was not. He was asked whether there was any material
anywhere which the police should know about and he replied that the
police already knew about “58 Curtis” (the premises where
the explosive devices were believed to have been manufactured)
because they had been there already. He identified the other man that
the police had seen at the west London flat that day as Mr Mohammed
and was asked whether the latter had control of any materials likely
to cause danger. He replied, “No, listen, I’ve seen my
photo and I was on the bus but I didn’t do anything, I was just
on the bus”. He was told that he would be interviewed about
that later and that all the police wanted to know was whether there
was anything at another location that was likely to cause danger. Mr
Ibrahim indicated that he was aware that the police were trying to
“link us to seven seven” (referring to the events of
7 July) and then said that he did “do the bus” but
that he had had nothing to do with the events of 7 July 2005.
- Mr
Ibrahim arrived at Paddington Green Police Station at 2.20 p.m.
He requested the assistance of the duty solicitor.
- At
4.12 p.m., during the booking-in procedure, he asked a police
officer, “How long am I looking at, 50 years?”. The
booking-in process was completed shortly afterwards.
- At
4.20 p.m. he was reminded of his right to free legal advice and
replied that he understood what had been said to him. The duty
solicitor was called at 4.42 p.m. and given a reference number.
At 5 p.m. the duty solicitors called the police station and
asked to speak to Mr Ibrahim. They were told that he was
“unavailable”. They called again at 5.40 p.m. and
were told that their details would be passed to the officer in charge
of the investigation for him to call them. They were informed that
telephone contact was impractical because the appropriate
consultation rooms were unavailable.
- At
6.10 p.m. a superintendent ordered an urgent interview and
directed that Mr Ibrahim should be held incommunicado. The custody
record explained that his right to access to legal advice was delayed
because there were reasonable grounds for believing that delaying an
interview would involve immediate risk of harm to persons or serious
loss of, or damage to, property; and that it would lead to the
alerting of other persons suspected of committing a terrorist offence
but not yet arrested, which would make it more difficult to prevent
an act of terrorism or secure the apprehension, prosecution or
conviction of a person in connection with terrorism offences. The
record referred to the suspicion that Mr Ibrahim had detonated an
explosive device on 21 July 2005 as part of an organised attack
intended to kill and injure members of the public.
- At
7 p.m. a different solicitor called the police station and asked
to speak to Mr Ibrahim. She was told that no-one of that name was
held at the police station. At 7.10 p.m. a police officer called
her and confirmed that Mr Ibrahim was not in custody. At 7.45
p.m., when it was established that Mr Ibrahim was at the police
station, she was told that he was already represented by the duty
solicitor.
- At
7.58 p.m. Mr Ibrahim was taken from his cell for a safety
interview. At 8 p.m. the second solicitor contacted the custody
officer. The custody record indicates that there was an issue because
two solicitors wished to represent Mr Ibrahim. At 8.15 p.m.,
while Mr Ibrahim was being interviewed, the second solicitor called
again seeking to speak to him.
- The
safety interview began with the new-style caution. He was told:
“...[W]hat that means is that I am going to ask
you some questions, you don’t have to say anything if you don’t
want to but the court can draw what’s called an inference from
that and that just means that they can look upon your silence as
perhaps a sign of guilt. And then what is being said here, it is
being tape recorded and it can be used in court.”
- During
the safety interview, Mr Ibrahim was asked whether he had any
materials such as explosives or chemicals stored anywhere. He denied
knowing where any such materials might be stored or having any
knowledge of planned attacks which might endanger the public. He told
the police that he did not know anything about explosives and that he
had no link with any terrorist groups. He added that he did not know
anyone who dealt with explosives, was a danger to society or was
planning terrorist activities. He did not know two of the men
connected with the events of 21 July shown on television. He was
unaware of anyone he knew having been involved in these events. He
said that Mr Mohammed was not someone who would be prepared to do
anything like that. The safety interview ended at 8.35 p.m.
- At
8.45 p.m. the duty solicitor arrived at the police station.
Mr Ibrahim was sleeping and saw the solicitor at 10.05 p.m.
- During
subsequent interviews while Mr Ibrahim was in detention, he made no
comment.
c. The arrest and detention of Mr Mohammed
- Mr
Mohammed was arrested and cautioned on 29 July 2005 at 3.22 p.m.
at a flat in west London on suspicion of involvement in the
commission, preparation or instigation of an act of terrorism.
- Mr
Mohammed arrived at Paddington Green Police Station at 4.29 p.m.
At 4.39 p.m., he requested the assistance of the duty solicitor.
At 5.05 p.m. the custody officer asked the relevant officers to
inform him whether Mr Mohammed was to be held incommunicado and at
5.48 p.m. this was authorised.
- Simultaneously
a superintendent authorised a safety interview. The reasons for
delaying access to legal advice were recorded. The superintendent
indicated that he believed that delaying an interview would involve
immediate risk of harm to persons or serious loss of, or damage to,
property; that it would lead to others suspected of having committed
offences but not yet arrested being alerted; and that by alerting any
other person it would be more difficult to prevent an act of
terrorism or to secure the apprehension, prosecution or conviction of
a person in connection with the commission, preparation or
instigation of an act of terrorism.
- At
6.59 p.m. the custody officer called the duty solicitor scheme and
was given a reference number. At around 7 p.m., a solicitor received
a call from the duty solicitor scheme. At 7.19 p.m. Mr Mohammed
signed the custody record indicating that he wished to speak to a
solicitor as soon as practicable. At 7.34 p.m. he was told that he
was being held incommunicado.
- At
about 8 p.m. the duty solicitors arrived at the front desk of
Paddington Green Police Station.
- At
8.14 p.m. the safety interview of Mr Mohammed commenced. He was
given the new-style caution. He was then told that he was suspected
of involvement in the attacks of 21 July and asked if he had any
knowledge of further explosives, and those who had them, which could
cause harm to the public in the near future. He maintained that he
had nothing to do with the events of 21 July 2005 and that he knew
nothing about them. He did not recognise the photographs of the
alleged perpetrators which he had seen in the media. The safety
interview finished at 8.22 p.m.
- The
duty solicitors arrived at the custody suite at 8.40 p.m. and saw Mr
Mohammed at 9.45 p.m. The delay was partly caused by Mr Mohammed’s
request for time to pray and the provision of a meal.
- On
31 July 2005 Mr Mohammed was interviewed for the second time, this
time in the presence of a solicitor. Early in the interview, the
solicitor read out the following statement by Mr Mohammed:
“I am not a terrorist and I’m not in any way
connected to any acts of terrorism and have not been connected to any
acts of terrorism ... particularly on 21st July or the
7th July 2005.”
- Thereafter
Mr Mohammed exercised his right to silence.
d. The defence
- The
four defendants accused of detonating their bombs later accepted that
they had been involved in the events of 21 July 2005 and had
detonated explosive devices on the underground trains or on a bus.
They claimed that their actions were not intended to kill but were
merely an elaborate hoax designed as a protest against the war in
Iraq. Although the bombs had been designed to look realistic, they
had deliberately been constructed with flaws to ensure that the main
charge would not detonate.
2. The trial
- The
trial against the applicants, Mr Osman, Mr Asiedu and one other
co-defendant accused of taking part in the essential preparation for
the attacks commenced on 15 January 2007.
a. The admissibility of the safety interviews
- The
applicants submitted that the admission of the evidence of the safety
interviews would have such an adverse effect on the fairness of the
proceedings that it ought to be excluded pursuant to section 78 of
the Police and Criminal Evidence Act 1978 (“PACE” –
see paragraph 89 below). They contended that their right of access to
a solicitor before and during the safety interviews was violated and
that their privilege against self incrimination was breached as
a result of the use of the new-style caution, when in fact the
old-style caution, which made it clear that no adverse inferences
could be drawn from their silence as they had not had access to
solicitors, ought to have been used. They also submitted that the
admission of evidence of safety interviews should be excluded on
grounds of public policy as if they were routinely admitted there was
a greater likelihood that suspects would refuse to answer questions
about public safety.
- A
voir dire was conducted. The judge handed down his ruling on
27 February 2007. He referred at the outset to the explanation
given by the superintendent who took charge of the investigation of
the situation which he faced. The superintendent referred in
particular to the discovery of a quantity of chemicals which appeared
to be far in excess of that required to construct the devices used
during the attacks of 21 July and evidence that the suspects were in
receipt of considerable post-event assistance.
- The
judge examined the safety interviews conducted in respect of Mr Omar.
He noted that in answering the questions designed to protect the
public, Mr Omar had volunteered a very large amount of misleading
information. He had not incriminated himself at any stage, but had
instead told extensive exculpatory lies. The judge considered it
clear that the police officers had concentrated throughout on issues
that might have revealed information relevant to assisting them to
locate people or items that could pose a danger to the public. He
noted that there was no suggestion that the police had exceeded the
requirements of what was necessary and that it was acknowledged that
the lines of questioning were relevant to public safety issues.
- As
regards Mr Ibrahim, having reviewed the evidence showing the times
and locations of the various interviews and consultations taking
place at the police station, the judge accepted “unhesitatingly”
that it would have been impractical for a telephone conversation
between the solicitor and Mr Ibrahim to have been arranged at
the time of her telephone calls. He observed that at the
relevant time there were eighteen detainees at the police station,
all arrested for suspected involvement in the events of 21 July 2005.
The police station was exceptionally busy and the conference rooms
had been prioritised for face-to-face consultations; it was not a
realistic option to leave a room free with a telephone socket for
telephone conversations with lawyers. The judge however noted that
the police had accepted that there had been a breakdown in
communication in that the interviewing officers were not told that
his solicitor was trying to speak with him on the telephone. He
examined the transcript of the safety interview conducted and noted
that Mr Ibrahim had consistently denied having knowledge of any
planned future attacks or hidden explosives.
- In
respect of Mr Mohammed, the judge again summarised his position in
the safety interview, which was that he was not involved in and had
no knowledge of the events of 21 July 2005.
- The
judge then referred to the relevant statutory framework governing
access to legal advice for those held under terrorism legislation
(see paragraphs 78-88 below), which made it clear that where a
suspect was interviewed without legal assistance, the old-style
caution should be administered. He noted that section 34(2A) of the
Criminal Justice and Public Order Act 1994 (see paragraph 87 below)
prohibited the drawing of adverse inferences from silence where the
suspect had not had access to legal advice. However, he considered
that this did not extend to preventing the court from admitting
evidence of things said by a suspect during questioning, including
any lies that he told, whether or not he had had the benefit of legal
advice. The judge indicated that the jury would be told in terms
that, contrary to the new-style caution administered, no adverse
inferences could be drawn from the failure of the applicants to
mention during questioning facts later relied on at trial.
- The
judge turned to review this Court’s case-law on access to legal
advice and the right to silence. He continued:
“In my view, the following conclusions are to be
drawn from those decisions of the ECHR. First, legal advice can be
withheld for good cause during the early stages of interviews, so
long as the conditions in which the interviews occur are not
significantly coercive (Magee) and so long as access is not
delayed for an excessive period (Murray). Moreover,
interviewing a suspect having withheld legal advice and following a
new-style caution is not decisive in the assessment of whether there
has been a breach of Article 6 (Averill). Rather, the court
must look at the circumstances overall and the use to which evidence
is put (and including whether adverse inferences are drawn).
Accordingly, so long as the overall circumstances have not caused
irretrievable prejudice to the rights of the defendant, much will
depend on the directions a jury receives as to how they should
approach the silence or the statement of a suspect in these
circumstances. As the court made clear in Averill,
considerable caution is required when attaching weight to the fact
that a person arrested in connection with a serious criminal offence
and having been denied access to a lawyer during the early stages of
his interrogation responds in a particular way – or as in that
case, does not respond – to the questions put to him. The need
for caution is not removed simply because an accused is eventually
allowed to see his solicitor and then refuses to answer questions. A
jury must be given a strong and careful warning that they must take
into account all of the relevant circumstances; they must have
discounted all reasonable (“innocent”) explanations for
the accused’s silence or statements before they consider using
this material against him; and the jury must be told to be careful
not to accord disproportionate weight to this evidence.”
- He
considered that the Code and the cautions were primarily designed to
protect an accused from self-incrimination and to warn him of the
consequences if he chose to answer questions and the harm that could
be done to his case if he failed to reveal elements of his defence on
which he later relied at trial. They were not intended to protect
defendants from telling lies. He explained:
“Whilst I recognise that an accused may benefit
from having a solicitor remind him of his moral duty to tell the
truth, in my view it is an invalid argument to suggest that an
interview is necessarily inadmissible because the suspect did not
have the advantage of a consultation with a solicitor, who had been
excluded for good cause, in order to tell him that he should not
deceive the police.”
- The
judge concluded that, despite the absence of a solicitor during the
safety interviews and the use of the wrong caution, there was no
significant unfairness or material infringement of the applicants’
right to a fair trial.
- Specifically
as regards Mr Omar, the judge found that he had been denied access to
a solicitor for a little over eight hours. The safety interviews were
conducted expeditiously and as soon as they were completed Mr Omar
was given access to a solicitor. The interviews were neither coercive
nor oppressive, as accepted by Mr Omar’s counsel. Although a
breach of the Code occurred when the new-style caution was
administered at the beginning of safety interview C, that did not
affect his attitude to the questioning. He continued telling lies
consistent with what he had said in safety interviews A and B.
- As
far as Mr Ibrahim was concerned, the judge was of the view that it
would have been impractical for him to have spoken to a solicitor
before the booking in procedures were completed at 4.42 p.m.
Although there was, in theory, time for a face-to-face conference
between 6.10 p.m., when the safety interview was authorised, and
7.58 p.m., when it was commenced, the judge considered that, in
light of the pressure under which the police were working, it was
wholly understandable that no officer appreciated that there was time
to ask the duty solicitor to attend for a meeting with Mr Ibrahim
before the safety interview commenced. However, the judge was of the
view that it should have been possible, between 5 p.m. and
7.58 p.m., to ensure that the duty solicitor was given access to
Mr Ibrahim by telephone and the judge accordingly concluded that, to
this limited extent, he was incorrectly denied access to legal advice
by telephone. However, he considered that this error did not involve
a material infringement of his defence rights, noting:
“145. ... [T]his infringement of his rights was of
low significance: it would have been impossible for [the duty
solicitor], in speaking to Ibrahim for the first time over the
telephone, to give detailed and informed advice in those
circumstances, and she would have been unable to provide material
assistance on the decision which he had to take. Although for this
defendant the choice was a straightforward one, [the duty solicitor]
would have needed to understand the entirety of the main background
circumstances before she could give advice that would have been
useful to Ibrahim as regards the options confronting him. She could
have advised him of his rights, but save for any issues arising out
of the misuse of the new-style caution, his core rights had already
been made clear to him: he was entitled to legal advice (which had
been delayed for public safety reasons); he was entitled to remain
silent; and anything he did say may be given in evidence against him.
There is no suggestion that he did not understand these
straightforward matters.”
- The
judge considered that the erroneous use of the new-style caution was
a straightforward and wholly understandable oversight on the part of
the officers conducting the interview, given the pressure under which
they were operating. He noted that the safety interview was short;
that it was not suggested that it had been conducted coercively; and
that the questions did not go beyond legitimate questioning for
safety purposes. The applicant saw a lawyer around seven and a half
hours after his first request to see one.
- In
respect of Mr Mohammed, the judge found that legal advice had been
delayed for about four hours, during which time eight minutes of
questioning took place. There was no suggestion that the interview
was held in coercive circumstances. Aside from the administration of
the new-style caution, there was no evidence of any pressure having
been applied. The judge was sure that the interview did not exceed
the legitimate bounds or purpose of a safety interview and was, on
the contrary, focused and appropriate.
- In
response to the submission that the accused were confronted with
irreconcilable propositions when asked to participate in the safety
interviews, the judge found that they were not. He noted:
“... The defendants were confronted with a stark
but clear choice: either they could help the police in the knowledge
that what they said may be utilised against them, or they could
protect themselves and remain silent ... What is clear beyond doubt
is that the defendants were not misled or deceived as to the
underlying purpose of the interviews, the possible consequences of
answering questions or the potential risks of not revealing elements
of their defence ...”
- He
further observed that the defence that the applicants chose not to
reveal at that stage was directly relevant to the public safety
issues and was easy to describe. It did not require any detailed
understanding of the criminal law or a complicated factual
explanation. It could have been summed up by the single word “hoax”.
He accepted that it was sometimes necessary to have the assistance of
a lawyer before a suspect could understand and describe a complicated
defence, but indicated that this was not the case here.
- Third,
he considered that the defendants might have had a more credible
position if they had answered the questions posed in ways which were
at least arguably designed to assist the public and which, as a
result, incriminated them. However, it was common ground that the
defendants had either lied or failed to reveal what they knew in the
safety interviews: rather than incriminate themselves, they had
offered false exculpatory explanations. Fourth, the judge found that
the invitation to cooperate in the process of protecting the public
was not an impermissible inducement. Finally, he concluded that the
administration of the new-style caution did not pressurise the
defendants into providing any element of their various defences.
- The
judge set out in detail the approach he had adopted to the exercise
of his discretion to exclude the evidence. In particular, he had
given full weight to the principle that access to legal advice before
and during questioning was one of the most fundamental rights that
should only be denied on reasonable grounds in particular cases; and
he had taken into consideration the fact that the environment in
which the applicants were held was not in any true sense coercive and
that the questioning was neither oppressive nor unfair. While he
accepted that the erroneous administration of the new-style caution
involved a level of indirect compulsion, this was not, in his view,
decisive: the choice for the applicants was an easy one and they had
not been “induced” by the caution to incriminate
themselves but had instead told deliberate, exculpatory lies.
Finally, he noted that the evidence of the safety interviews was
potentially of high relevance to the central question raised in the
trial, namely whether the defences now advanced were possibly true.
- He
concluded that there had been no material infringement of the right
of any of the accused to exercise his defence rights and that the
interviews were therefore admissible in their entirety. He observed
that carefully crafted jury directions would be required in due
course
b. The evidence
- The issue at trial was whether the failure of the
devices to explode was an intentional design flaw or a mistake in the
construction of the devices. The prosecution relied heavily on the
applicants’ answers in their safety interviews to undermine
their defence that the events of 21 July were intended as a hoax.
There was also evidence of extremist material found at the residences
of Mr Omar and Mr Osman. The prosecution also relied on evidence as
to the purchase of the material for the devices and the construction
of the devices. They established that between 28 April and 5 July,
443 litres of liquid hydrogen peroxide at a concentration of 18 per
cent had been purchased from three shops in north London in a total
of 284 containers by Mr Asiedu, Mr Ibrahim and Mr Omar. There
was evidence that they had requested liquid hydrogen peroxide at
60-70 per cent strength and that they had boiled the hydrogen
peroxide to increase its concentration. A number of the empty bottles
later recovered had handwritten markings on them noting “70”
or “70%”, which the prosecution contended was evidence
that the defendants believed that this concentration had been
reached. Further, shrapnel had been added to the devices, which would
have increased fragmentation upon explosion and maximised the
possibility of injury. A farewell letter written by Mr Mohammed,
which the prosecution alleged was a suicide note, had been recovered.
- The
three applicants gave evidence to the effect that their actions were
intended as a hoax. Mr Osman did not give evidence.
- Like
the applicants, Mr Asiedu’s case prior to trial was that the
events of 21 July 2005 were a hoax. However, after Mr Ibrahim had
given evidence, Mr Asiedu gave oral evidence and changed his previous
position. He claimed to have learned on the morning of 21 July 2005
that the devices were real bombs. He was too confused and frightened
to refuse the device that was handed to him, but in accepting it, he
did not intend to join or play any part in the conspiracy.
c. The Osman confession
- During the night of 7-8 June 2007, while Mr Osman was
detained in prison, he made remarks to two prison officers which were
capable of constituting a confession within the meaning of the
applicable legislation. By this stage in the trial the prosecution
had already commenced its closing submissions. The prosecution did
not apply to have the evidence reopened to admit evidence of the
Osman confession. In particular, no application was made to admit the
confession as hearsay evidence against the applicants. However, the
confession was relevant to the defence of Mr Asiedu. He
therefore sought permission to reopen his case and adduce the
evidence of the prison officers. The confession was not challenged by
Mr Osman, who did not dispute that he had uttered the statements in
question.
- On
12 June 2007 the trial judge ruled that Mr Asiedu could reopen his
case to adduce evidence of the Osman confession. It is not clear
whether counsel for the applicants sought to have the confession
evidence excluded altogether. However, it emerges from the judge’s
ruling that counsel for Mr Mohammed and Mr Ibrahim sought
disclosure of medical records and permission to cross-examine the
officers to demonstrate that the confession was unreliable.
- The judge noted that the evidence of the confession
was admissible only against Mr Osman, although it could be relied on
by the prosecution and Mr Asiedu to support their different cases. He
refused the defence request for disclosure and permission to
cross-examine. He considered that although Mr Osman had displayed
some unusual behaviour early on in the trial, there was no suggestion
that he was suffering from any mental illness such as to affect his
ability to express himself reliably on issues relevant to his case.
The judge had personally examined Mr Osman’s medical records
and was satisfied that nothing had been revealed to lead him to
determine that the evidence was so lacking in reliability that it
ought to be excluded. He emphasised that the introduction of such
evidence as the defence wished to introduce would be highly
prejudicial to Mr Osman, while not going to a live issue before the
jury in their cases, given that the confession evidence was limited
to the cases of Mr Osman and Mr Asiedu. He concluded that before the
evidence was introduced to the jury, they would receive a strong
direction as to the ambit of its relevance, which would be repeated
during the summing up. He considered that this would ensure that the
confession would not upset the fairness of the proceedings.
- The prison officers subsequently gave oral evidence of
the confession by Mr Osman. Prior to their being called, the jury
were given a firm, unequivocal direction that their evidence was
relevant only to the cases of Mr Osman and Mr Asiedu; it was
irrelevant to the remaining defendants. This direction was later
repeated during the trial judge’s summing up to the jury.
d. The summing-up
- As noted above, during the summing up the jury were
directed that the evidence of Mr Osman’s confession was
evidence against him alone and could not constitute evidence against
the applicants.
- The
jury were further directed that no adverse inferences could be drawn
from the failure of the applicants to mention during police
interviews prior to consultation with a lawyer facts on which they
later sought to rely at trial.
- The judge also directed the jury that allegations
advanced by counsel were not evidence and it was only the answers
given by witnesses that constituted evidence in the case.
e. The verdict
- On
9 July 2007 the applicants together with Mr Osman were convicted of
conspiracy to murder in the Central Criminal Court. The jury were
unable to reach verdicts in respect of Mr Asiedu and the remaining
co-defendant and a re-trial in their cases was ordered.
- On
11 July 2007 the applicants were sentenced to life imprisonment with
a minimum term of forty years’ imprisonment.
2. The appeal
- The
applicants sought leave to appeal against their convictions. They
argued that the evidence of the safety interviews should have been
excluded and that they should have been permitted to challenge the
reliability of the Osman confession. Mr Omar also argued that attacks
on his solicitor’s character made by counsel for Mr Asiedu in
his closing speech had rendered his trial unfair.
- On
23 April 2008 the Court of Appeal refused leave to appeal against
conviction. It noted at the outset:
“5. ... It is virtually impossible to imagine the
pressure and concerns which must have been felt by the police
investigating teams. Two weeks earlier four bombs had been
successfully detonated with the dreadful consequences with which we
are familiar, and they were now faced with four more bombs, again in
the transport system, which had been detonated, but failed to
explode. The bombers involved on 7th July had perished, but the
perpetrators of the second intended atrocity were at large, free to
repeat their murderous plans, and to do so more effectively. They had
to be found and detained, and the immediate objective of the
investigation, including interviews of those arrested in connection
with these incidents, was directed to public safety.”
- As
to the effect of the admission of the safety interviews, the court
observed:
“20. ... At this stage we simply record that if
the records of the police interviews were properly admitted, they
were sufficient, on their own, utterly to undermine the ‘hoax’
defence.”
- The
court was of the view that an interview process which, so far as
possible, enabled the police to protect the public was a necessary
imperative. It considered that the question whether the results of
such interviews should be used as evidence against the suspects was
delicate. However, it emphasised that in the present cases none of
the applicants had said anything which directly incriminated them, or
involved any confession to involvement in or even remote knowledge of
the conspiracy to murder on 21 July. Nevertheless, it noted, the
interviews provided important evidence against them, not because they
told the truth and revealed knowledge of or involvement in terrorist
activity, but because the applicants had made a number of
demonstrably untrue assertions without suggesting the defences that
they later advanced at trial. The prosecution relied on these untrue
assertions to undermine the credibility of the defendants who sought
to advance the “hoax” defences. The court accepted that,
owing to police error, incorrect cautions were administered to the
applicants before they told the lies in question. However, it
emphasised that each applicant was warned that the answers given in
the safety interviews might be used in evidence against them. The
court continued:
“So they were under no illusions. They did not
purport to incriminate themselves at all. They chose to lie. On any
view that was an important consideration in the exercise of [the
trial judge’s] discretion.”
- The
court was satisfied that the exercise of discretion by the trial
judge was fully informed and that he approached the relevant issues
with care.
- As
regards Mr Omar, the court noted that he was the first of the
defendants to be arrested and that, as a consequence, what he might
have to say was of absolutely crucial importance to the stark public
safety issues which confronted the police at the time. It observed
that during the voir dire, it was expressly accepted that the
decision to hold a safety interview before Mr Omar was granted access
to a lawyer was a valid decision under schedule 8 of the Terrorism
Act 2000 (see paragraphs 78-86 below). It was further conceded that
the interviews were conducted fairly and moderately, and that they
were neither coercive nor oppressive. However, on appeal counsel for
Mr Omar sought to argue that the police action to delay Mr Omar’s
access to legal advice was not lawful. The Court noted:
“First, breaches of the relevant Code do not make
subsequent police actions unlawful, at any rate in the sense that
they are or would be sufficient of themselves to lead to the
exclusion of the results of the subsequent interviews. When, as the
judge found, the police were not seeking deliberately to manipulate
the system in bad faith, he was required to address the exclusionary
powers provided by section 78 of PACE: no more, no less. This leads
to the second consideration, that it is always open to the
defendant’s advocates at trial to make a deliberate forensic
decision to waive or ignore, and therefore choose not to rely on the
breaches of the relevant Code, if the effect of inviting attention to
them may increase rather than diminish the defendant’s
difficulties. In short, the trial advocate must make his own judgment
whether to advance argument based on breaches of the relevant Code,
or to argue some, or one, but not all of them.”
- The
court could see nothing to support the conclusion that the decision
to admit the evidence of the safety interviews in Mr Omar’s
case was flawed.
- In
respect of Mr Ibrahim, the court noted that three submissions were
being advanced by his counsel. First, it was argued that the
superintendent’s conclusion that a pre-interview consultation
between Mr Ibrahim and the duty solicitor would cause unnecessary
delay was a serious error of judgment as the safety interview had not
taken place until over an hour later. Second, it was contended that
the continued questioning of Mr Ibrahim after he had denied knowing
anything constituted a breach of the Code, paragraph 6.7 (see
paragraph 85 below). Finally, it was submitted that the
administration of the new-style caution had contributed to the
unfairness by introducing an element of coercion. The Court of Appeal
explained in detail how the trial judge had approached these matters
and concluded that it saw no basis for interfering with his decision
that the safety interview should be admitted.
- As
regards Mr Mohammed, the court noted that the trial judge had
accepted that the wrong caution was given and that access to legal
advice was delayed for almost four hours. The court also emphasised
that the judge was confident that the interview was a genuine safety
interview and that he had noted that it had lasted eight minutes and
was not held in coercive circumstances. The court could see no basis
for interfering with the decision of the trial judge that the
admission of the evidence did not render the trial unfair.
- As
to the ground of appeal advanced by Mr Omar regarding attacks on the
character of his solicitor, the court noted that no objection had
been raised at trial to the terms of the closing speech of counsel
for Mr Asiedu. It further noted that no suggestion was made that a
direction be given to the jury to the effect that they were not to
take into account the remarks, despite the fact that the trial judge
had circulated draft directions to counsel well in advance and had
invited proposals for amendment. In conclusion, the court was
satisfied that the trial judge had dealt adequately with the issues
in his summing up when he reminded the jury that allegations made by
counsel were not evidence in the case (see paragraph 64 above).
- As
far as the Osman confession was concerned, the Court of Appeal
emphasised that the confession had been used as evidence against
Mr Osman only and for the purposes of Mr Asiedu’s defence.
It found that the applicants had no locus standi to cross-examine or
to introduce evidence because, as everybody understood at trial, Mr
Osman’s confession was admitted on the limited basis that it
was not and could not constitute evidence in the case against any of
the applicants.
B. Relevant domestic law and practice
1. Safety interviews
a. The Terrorism Act 2000
- The Terrorism Act 2000 (“the 2000 Act”)
governs the arrest and detention of those suspected of committing
terrorist offences. Schedule 8 deals with access to legal advice. The
law cited below sets out the position at the material time;
amendments which are not significant in the present cases have since
been made to the relevant provisions.
- Paragraph 6 set out the right of a detainee, if he so
requested, to have one named person informed as soon as was
reasonably practicable that he was being detained (“the right
not to be held incommunicado”). This right was subject to
paragraph 8.
- Paragraph 7 provided that a person who was arrested as
a suspected terrorist was entitled, if he so requested, to consult a
solicitor as soon as reasonably practicable, privately and at any
time (“the right to legal advice”). This right was also
subject to paragraph 8.
- Paragraph 8(1) provided that an officer of at least
the rank of superintendent could authorise a delay in the
entitlements set out in paragraphs 6 and 7. Pursuant to paragraph
8(2), such authorisation could be given only if he had reasonable
grounds for believing that the exercise of the entitlements would
have any of the following consequences:
“(a) interference with or harm to evidence of a
serious arrestable offence,
(b) interference with or physical injury to any person,
(c) the alerting of persons who are suspected of having
committed a serious (arrestable) offence but who have not been
arrested for it,
(d) the hindering of the recovery of property obtained
as a result of a serious (arrestable) offence or in respect of which
a forfeiture order could be made ...;
(e) interference with the gathering of information about
the commission, preparation or instigation of acts of terrorism,
(f) the alerting of a person and thereby making it more
difficult to prevent an act of terrorism, and
(g) the alerting of a person and thereby making it more
difficult to secure a person’s apprehension, prosecution or
conviction in connection with the commission, preparation or
instigation of an act of terrorism.”
- Paragraph 8(7) provided that where authorisation was
given, the detainee had to be informed of the reasons for the delay
as soon as practicable and the reasons had to be recorded.
b. The Code of Practice
- At the material time no codes of practice existed in
relation to the above provisions. However, Code C, adopted under the
Police and Criminal Evidence Act 1984, regulated the position of
those detained on suspicion of terrorism.
- Section 5 of Code C dealt with the right not to be
held incommunicado. Paragraphs 5.1 and 5.2 set out the general right
to have a named person contacted as established in paragraph 6 of
schedule 8 to the 2000 Act and explained that the exercise of the
right could only be delayed in accordance with Annex B of the Code.
- Section 6 of Code C dealt with the right to legal
advice. Paragraphs 6.1 and 6.5 set out the general right to legal
advice as established in paragraph 7 of schedule 8 to the 2000 Act
and explained that the exercise of the right could only be delayed in
accordance with Annex B of the Code. Paragraph 6.6 explained that a
detainee who wanted legal advice could not be interviewed until he
had received such advice unless Annex B applied; or there were
reasonable grounds to believe that the consequent delay might have,
inter alia, the consequences set out in paragraph 8 (a) to (d)
of schedule 8 to the 2000 Act (see paragraph 81 above) and when a
solicitor had been contacted, awaiting his arrival would cause
unreasonable delay to the process of the investigation. In both
cases, the restriction on drawing adverse inferences from silence
would apply because the suspect had not had the opportunity to
consult a solicitor. Paragraph 6.7 explained that once sufficient
information had been obtained to avert the risk, the questioning
should cease until the detainee had obtained legal advice.
- Part B of Annex B concerned persons detained under the
2000 Act. It provided that the right discussed in sections 5 and 6
could be delayed for up to forty-eight hours if there were reasonable
grounds to believe that the exercise of the right would lead to the
consequences set out in paragraph 8 of schedule 8 of the 2000 Act
(see paragraph 81 above).
2. Cautions
- Section 34 of the Criminal Justice and Public Order
Act 1994 permits adverse inferences to be drawn by a jury where a
defendant fails to mention during police questioning any fact relied
on in his defence in subsequent criminal proceedings. The precise
circumstances in which such adverse inferences can be drawn are
explained to the jury in detail in the trial judge’s summing
up. Pursuant to section 34(2A), such adverse inferences cannot be
drawn if the defendant was not been allowed an opportunity to consult
a solicitor prior to being questioned.
- At the relevant time, Part D of Annex B to the Code
clarified that no adverse inferences from a detainee’s silence
could be drawn in any interview during the period for which access to
legal advice had been delayed pursuant to Annex B. Annex C, which
dealt with restrictions on drawing adverse inferences from silence,
explained that section 34 of the 1994 Act was subject to any
overriding restriction on the ability of the court to draw adverse
inferences. This restriction applied where a detainee had, before
interview, asked for legal advice, been denied access to a solicitor
and had not changed his mind about wanting legal advice. It clarified
that the terms of the caution in these circumstances was:
“You do not have to say anything, but anything you
do say may be given in evidence.”
3. Admissibility of evidence
- Section 78 PACE provides the court with a discretion
to exclude evidence if its admission would have such an adverse
effect on the fairness of the trial that it ought not to be admitted.
- Under section 76 PACE, a confession made by an accused
person may be given in evidence against him.
- At common law, such a confession is not normally
admissible against any other person implicated in it. The case of R
v. Hayter [2005] 1 UKHL 6 concerned an appeal by a defendant who
had stood trial for murder together with two co-accused. One of the
two co-accused had confessed to his girlfriend. The trial judge
directed the jury that, if they were satisfied that the two
co-accused were guilty of murder, it would be open to them to take
account of those findings of guilt in deciding whether to convict the
appellant. All three defendants were subsequently convicted. A
majority of the House of Lords found that the trial judge had
directed the jury not to take into account the co-accused’s
confession in the case against the appellant. Thus, there was no
infringement of the common law rule prohibiting the admissibility of
one accused’s confession against another accused. There was no
good reason why the co-accused’s guilt could not be used by the
jury as a fact against the appellant, and it was of no significance
that the co-accused’s guilt had been established by his own
confession.
COMPLAINTS
The
applicants complained under Article 6 §§ 1 and 3 (c) of the
Convention about the refusal to allow them prompt access to legal
advice, the erroneous administration of the new-style caution and the
subsequent admission at trial of the evidence of the safety
interviews.
They
further complained under Article 6 §§ 1 and 3 (d) about the
prohibition on adducing evidence to challenge the reliability of Mr
Osman’s confession.
Finally,
Mr Omar also complained about the prejudice caused by attacks on his
solicitor’s character made in the opening and closing
submissions of counsel for Mr Asiedu at trial.
THE LAW
- Article
6 §§ 1 and 3 (d) provide, in so far as relevant, as
follows:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him.”
A. Joinder
- Given
their similar factual and legal background, the Court decides that
the three applications should be joined pursuant to Rule 42 § 1
of the Rules of Court.
B. The alleged violation of Article 6 §§ 1 and 3 (d) in
respect of the Osman confession
- The
applicants contended that the refusal of the trial judge to allow
them to adduce evidence to challenge the reliability of the Osman
confession rendered their trial unfair. They argued that the jury
were essentially asked to find as fact, on the basis of the Osman
confession, that there had been a plan to use real bombs in a genuine
suicide attack in the context of the cases against Mr Osman and Mr
Asiedu, but to ignore that finding in considering the applicants’
cases. This, the applicants submitted, was artificial, particularly
in light of the House of Lords ruling in R v. Hayter,
which permitted a finding of guilt in respect of one accused to be
used as a fact against another (see paragraph 91 above). In the
absence of any evidence to challenge the reliability of the
confession, the applicants considered that the jury had no choice but
to treat it as reliable. As a consequence their defences were fatally
damaged.
- The
Court recalls that the guarantees in Article 6 § 3 (d) are
specific aspects of the right to a fair hearing set forth in Article
6 § 1 which must be taken into account in any
assessment of the fairness of proceedings. While Article 6 §
1 guarantees everyone’s right to a fair trial, it does not as
such prescribe rules of evidence and in particular rules on the
admissibility and probative value of evidence, which are essentially
matters for the national law (see X. v. Belgium, no. 8876/80,
Commission decision of 16 October 1980, Decisions and Reports (DR)
23, p. 235. See also Schenk v. Switzerland, 12 July 1988,
§§ 45-46, Series A no. 140; Gäfgen v. Germany
[GC], no. 22978/05, § 162, ECHR 2010; and Al-Khawaja and
Tahery v. the United Kingdom [GC], nos. 26766/05 and
22228/06, § 118, 15 December 2011). The question which must
be answered is whether, having regard to the various interests at
stake, the proceedings as a whole were fair (see Doorson v. the
Netherlands, 26 March 1996, §§ 67 and 70, Reports of
Judgments and Decisions 1996 II; and Al-Khawaja and
Tahery, cited above, § 118).
- The
Court notes, first, that no application was made by the prosecution
to have the evidence of the Osman confession admitted as hearsay
evidence against the applicants. Indeed the prosecution did not seek
to adduce evidence of the Osman confession at all: the application to
adduce the evidence was made by a co-accused (see paragraph 58
above). The trial judge emphasised that the evidence was admissible
against Mr Osman only and that it was not probative of any issues in
the applicants’ cases. The judge directed the jury
accordingly prior to the taking of evidence from the two prison
officers, and he repeated the direction in the course of his summing
up at the end of the trial (see paragraphs 61-62 above). The Court
has previously attached weight to the clarity of relevant jury
directions regarding the correct approach to evidence presented at
trial and has indicated that, in the absence of evidence to the
contrary, jury members are assumed to be able to follow and to apply
such directions (see Firkins v. the United Kingdom (dec.), no.
33235/09, 4 October 2011).
- Second,
the Court observes that the trial judge examined carefully the
arguments advanced by counsel for Mr Omar and counsel for Mr Mohammed
to support their applications to adduce evidence to challenge the
reliability of the confession. In refusing their applications, he
provided detailed reasons for his decision (see paragraph 60 above).
- Third,
it is clear that, in reaching his decision, the trial judge had
regard to the other interests at stake, namely Mr Osman’s
defence rights. He considered that allowing the applicants to
adduce evidence pertaining to Mr Osman’s mental state would be
highly prejudicial to him, and weighed this in the balance together
with the fact that the evidence would not be probative of any issue
in the applicants’ cases (see paragraph 60 above).
- Finally,
the Court observes that there was a great deal of evidence against
the applicants to justify a finding of guilt against them
(see paragraph 55 above). Indeed, as the Court has already
noted, the prosecution did not seek to reopen their case to adduce
the confession evidence in support of their case against Mr Osman,
and made no application to have the evidence of the confession
admitted as hearsay evidence against the applicants (see paragraph 58
above).
- In
these circumstances, the Court is satisfied that the decision of the
trial judge to refuse the applicants permission to adduce evidence of
Mr Osman’s mental condition and to cross-examine the
police officers discloses no appearance of a violation of Article 6 §
1 read in conjunction with Article 6 § 3 (d) of the Convention.
The complaint must therefore be rejected in accordance with Article
35 §§ 3 and 4 of the Convention.
C. The alleged violation of Article 6 § 1 as regards the
attacks on Mr Omar’s solicitor
- Mr
Omar further alleged that the attacks on the character of his
solicitor made at trial by counsel for Mr Asiedu in his opening and
closing remarks rendered his trial unfair as the jury were likely to
accord some weight to those comments.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds no
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols arising from this complaint. It
accordingly rejects this complaint in accordance with Article
35 §§ 3 and 4 of the Convention.
D. The alleged violation of Article 6 §§ 1 and 3 (c) in
respect of the applicants’ access to a lawyer and the admission
of the evidence of the safety interviews
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of this complaint and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of it to the respondent Government.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants’
complaints concerning the delay in their access to a lawyer and the
admission of the evidence of the safety interviews at trial;
Declares the remainder of the applications inadmissible.
Lawrence Early Lech Garlicki
Registrar President
